I love this opinion by the US District Court for the Western District of Pennsylvania. The court explains the glaring problems with measures taken across the world in response to the SARS-CoV-2 virus much more eloquently and succinctly than I ever could. And believe me, I’ve tried, many times, to explain exactly the points the judge raises here.

Good intentions toward a laudable end are not alone enough to uphold governmental action against a constitutional challenge. Indeed, the greatest threats to our system of constitutional liberties may arise when the ends are laudable, and the intent is good – especially in a time of emergency. In an emergency, even a vigilant public may let down its guard over its constitutional liberties only to find that liberties, once relinquished, are hard to recoup and that restrictions – while expedient in the face of an emergency situation – may persist long after immediate danger has passed.

What were initially billed as temporary measures necessary to “flatten the curve” and protect hospital capacity have become open-ended and ongoing restrictions aimed at a very different end – stopping the spread of an infectious disease and preventing new cases from arising – which requires ongoing and open-ended efforts. Further, while the harshest measures have been “suspended”, Defendants admit that they remain in-place and can be reinstated sua sponte as and when Defendants see fit. In other words, while not currently being enforced, Pennsylvania citizens remain subject to the re-imposition of the most severe provisions at any time. Further, testimony and evidence presented by Defendants does not establish any specified exit gate or end date to the emergency situations. Rather, the record shows that Defendants view the presence of disease mitigations upon the citizens of Pennsylvania as a “new normal” and they have no actual plan to return to a state where all restrictions are lifted.

The plain language of the statute makes clear that the lockdown effectuated by the stay-at-home orders is not a quarantine. A quarantine requires, as a threshold matter, that the person subject to the “limitation of freedom of movement” be “exposed to a communicable disease.” Moreover, critically, the duration of a quarantine is statutorily limited to “a period of time equal to the longest usual incubation period of the disease.” The lockdown plainly exceeded that period.

Not only are lockdowns like the one imposed by the Defendants’ stay-at-home orders unknown in response to any previous pandemic or epidemic, they are not as much mentioned in recent guidance by the Centers for Disease Control and Prevention (“CDC”). The fact is that the lockdowns imposed across the United States in early 2020 in response to the COVID-19 pandemic are unprecedented in the history of our Commonwealth and our Country. They have never been used in response to any other disease in our history. They were not recommendations made by the CDC. They were unheard of by the people of this nation until just this year. It appears as though the imposition of lockdowns in Wuhan and other areas of China – a nation unconstrained by concern for civil liberties and constitutional norms – started a domino effect where one country, and state, after another imposed draconian and hitherto untried measures on their citizens. Broad population-wide lockdowns are such a dramatic inversion of the concept of liberty in a free society as to be nearly presumptively unconstitutional unless the government can truly demonstrate that they burden no more liberty than is reasonably necessary to achieve an important government end. The draconian nature of the lockdown may render this a high bar, indeed.

The liberties protected by the Constitution are not fair-weather freedoms – in place when times are good but able to be cast aside in times of trouble. There is no question that this Country has faced, and will face, emergencies of every sort. But the solution to a national crisis can never be permitted to supersede the commitment to individual liberty that stands as the foundation of the American experiment. The Constitution cannot accept the concept of “a new normal” where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures. Rather, the Constitution sets certain limits that may not be crossed, even in an emergency.

I wish we had a justice system in Germany that valued civil liberties and freedoms as high as this court and had the foresight and eloquence of this judge.

c.f.: Pa. Gov.’s COVID-19 Closure, Crowd Limit Rules Struck Down, Law 360